Maryland Farmer I

15 February 1788

by

To assert that bills of rights have always originated from,
or been considered as grants of the King or Prince, and
that the liberties which they secure are the gracious
concessions of the sovereign, betrays an equal ignorance
of history and of law, or what in effect amounts to the
same thing a violent and precipitate zeal.

I believe no writer in the most venal age, has ever
openly asserted this doctrine, but the prostituted, rotten
Sir Robert Filmer, and Aristides—And the man who at this
day would contend in England that their bill of rights is
the grant of the King, would find the general contempt his
only security—In saying this, I sincerely regret that the
name of Aristides should be joined with that of Sir Robert
Filmer, and I freely acknowledge that no contemptible degree
of talents, and integrity render him who uses it, much
more worthy of the very respectable association he has selected
for himself—But the errors of such men alone are
dangerous—the man who has too much activity of mind,
or restlessness to be quiet, qualities to engage public and
private esteem, talents to form and support an opinion,
fortitude to avow it, and too much pride to be convinced,
will at all times have weight in a free country, (especially
where indolence is the general characteristic) though that
weight he will always find impaired in proportion as he
indulges levity, caprice and passion.

I will confine my inquiry to the English constitution—Example
there, is in a great measure law here—and the authority
of an American judge on a point of English law,
should be digested with coolness and promulgated with
caution, because it is frequently conclusory.

The celebrated and only bill of rights of Great-Britain,
which is considered as the supreme law of the land, and
not to be questioned or impeached in their courts, was the
work of that convention of lords and commons in 1688,
which declared that King James 2d, had abdicated the crown,
and that the throne had thereby become vacant, and who after
they had compleated and asserted this glorious declaration
of the unalienable rights of their fellow citizens, pursuing
the peculiar duty of a convention, conferred the crown of
the three kingdoms on an alien and foreigner, William
the 3d.

Can any man imagine that this convention could at that
time, have considered these rights as the grant of a King,
whom they previously declared to have abdicated the
throne, or the gracious concessions of a Prince whom they
were about to deprive forever of the crown? Or could they
have considered this bill of rights as the concession of
Prince William, at that time a foreigner and alien, not entitled
to hold a foot of land, or any of the common rights
of citizenship, and who could afterwards only derive his
title to the crown from the same source, which gave authority
and sanction to this fundamental and most inestimable
law? or, could the British nation at that time, or
ever since, have viewed this declaration, as the grant and
concession of a King or Prince, when no King or Prince
was at that time in existence?—But should there remain
any minds yet unsatisfied, I refer such to the debates of
that convention, which are preserved in Grey's debates in
parliament, and there will be found in them, the principles
of equal liberty, the inherent and unalienable rights of
men, as amply and ably discussed, and as fully recognized
by the authors of that blessing, the artists of that British
palladium, as ever they have since been by the animated
patriots of America, or the present age.—I also refer them
to an inestimable little treatise composed on this occasion
by that accomplished lawyer and patriot, afterwards the
Lord Somers—High Chancellor of Great-Britain—then a
member of the convention, and chiefly instrumental in
their great work—a pamphlet that should find a place in
the library of every American judge at least—Whoever peruses
these, will discover undeniable evidence, that the
British convention, considered this their declaration, as the
concession of no Prince, but the Prince of Heaven—whom
alone they acknowledged as the author of their liberties—they
will there find that a bill of rights, is an enumeration
of those conditions on which the individuals of the empire
agreed to confirm the social compact; and consequently
that no power, which they thus conditionally delegated to
the majority (in whatever form organized) should be so
exercised as to infringe and impair these their natural
rights—not vested in SOCIETY, but reserved to each member
thereof.

This was not the doctrine of that period alone—It was
the common law and constitution of England, so asserted
and maintained by the ablest lawyers of every age of the
empire.—The petition of right, which came forward in the
reign of Charles 1st, said to have been originally penned
by the celebrated Lord Coke—although in its title a contradiction
in terms, is yet in substance equally strong and
clear—asserting the rights of the people to be coeval with
the government—We find this principle strenuously and
ably maintained through all the works of this great man,
and to this doctrine he finally, with the devotion of a freeman,
and the fortitude of an Englishman, sacrificed his
vanity, his ambition and his avarice—This last act of an
aged and venerable judge, has obliterated the errors of a
youthful courtier—it has made his peace with posterity,
who with gratitude and indulgence has forgiven the conduct
of a court lawyer, which she might have punished
with detestation, although she could not correct.

Here I cannot but observe what strenuous bill of rights
men, all the great luminaries of the English law have been:
to Lord Coke and Lord Somers, I will add that [ ] of
human nature, Sir Matthew Hale, in whom were united
true Christian piety, Roman fortitude, and an understanding
more than human.

This perfect man although firmly opposed to the violences
of the mad fanatics of the age, stood up almost
alone in that parliament which restored the regal government,
in favor of a bill of rights—but the tide of popular
rage, hastening to place the worthless Charles on the
throne of his more worthless ancestors, was too strong,
and the voice of that man could not be heard, who was
the delight of his own and the admiration of succeeding
ages.

It is true, that something like the doctrine of Aristides
was frequently the language of courtiers and sycophants
in the feeble reigns of the arbitrary Stuarts—times of impotent
and impudent usurpation—and they grounded
their assertions on the form of the statute of magna
charta, a statute much estemed for the many valuable
rights it ascertains—the enacting words of which imply it
to be an act of the King—But Aristides must know that
this was the frequent form of the ancient statutes, sometime
it is the King alone enacts, sometime the King with
advice and consent of the great men and Barons, and
sometimes the three estates—Even at this day, the King
uses these words in passing laws that bear the same implication;
and we see even in America acts of authority issue
under the name and signature of the Governor alone, who
has not a voice unless the council are divided—But as to
the legal and acknowledged authority of the King at the
time of enacting magna charta, there can remain but little
doubt. Henry Bracton a contemporary lawyer and judge,
who has left us a compleat and able treatise on the laws of
England, is thus clear and express—Omnes quidem sub rege,
ipse autem sub lege, all are subject to the King, but the King
is subject to the law—It will hardly then be imagined, that
the supreme law and constitution were the grants and
concessions of a Prince, who was thus in theory and practice,
subject himself to ordinary acts of legislation—But all
these things are so amply discussed and the authorities so
accurately collected in the publication of my Lord Somers,
that a reference must be much more satisfactory than a
repetition.

If I understand Aristides, he says that it would have
been considered as an arrogant usurpation of sovereign
rights in the members of convention, to have affixed a bill
of rights—Can he reconcile this position with another
opinion in his remarks, where he maintains that in offering
this constitution, they could only act as private individuals,
any of whom have a right to propose a constitution
to the Americans to adopt at their discretion—In this view
they could only have proposed—it is certain they could not
have enacted a bill of rights—Nor would there have been
any usurpation in WE the people, of the States of New Hampshire,
Massachusetts, &c. securing to ourselves and our posterity
the following unalienable rights, &c. which is the stile of the
new constitution—The convention have actually engrafted
some of these natural rights, yet no one calls it an usurpation—nor
can I believe that any of my fellow-citizens of
the United States, would have discovered the least indignation,
had they engrafted them all—The universal complaint
has been that they have enumerated so few—But
says Aristides, it would have been a work of great difficulty,
if not impossible to have ascertained them—Are the
fundamental rights of mankind at this day unknown? Are
they so soon forgot? If they are not imprinted on our
hearts, they are in several of the constitutions—Although
various in form, they are certainly not contradictory in
substance—It did not require the wisdom of a national
convention to have reduced them into order, and such as
would not have gained the suffrage of a majority, would
never have been regretted by America—or, I will venture
to assert, what I shall never believe, that the majority were
very unworthy of the trust reposed in them—Nor yet can
I believe, that the late convention were incompetent to a
task that has never been undertaken in the separate States
without success.

This constitution is to be the act of the individual members
of the American empire—the highest source of
terrestrial power with us—As it is a subsequent act, it not
only repeals all prior acts of the same authority where it
interferes with them—But being a government of the
people of all the States, I do not know what right the citizens
of Maryland for instance, have to expect that the citizens
of Connecticut or New-Jersey, will be governed by
the laws or constitution of Maryland—or what benefit a
citizen of Maryland could derive from his bill of rights in
a court of the United States, which can only be governed
by the constitution and laws of the United States—Nor will
it help the question to say, what will certainly be denied,
that the future Congress may provide by law for this,—that
an ordinary law of the United States can make, is an
admission that it can unmake, and to submit the bills of
rights of the separate States to the power of every annual
national parliament, is a very uncertain tenure indeed.

If a citizen of Maryland can have no benefit of his own
bill of rights in the confederal courts, and there is no bill
of rights of the United States—how could he take advantage
of a natural right founded in reason, could he plead
it and produce Locke, Sydney, or Montesquieu as authority?
How could he take advantage of any of the common
law rights, which have heretofore been considered as the
birthright of Englishmen and their descendants, could he
plead them and produce the authority of the English
judges in his support? Unquestionably not, for the authority
of the common law arises from the express adoption by
the several States in their respective constitutions, and that
in various degrees and under different modifications—If
admitted at all, I do not see to what extent, and if admitted,
it must be admitted as unalterable by ordinary acts of
legislation, which would be impossible—and it could never
be of use to an individual, but in combating some national
law infringing natural right.—To render this more intelligible—suppose
for instance, that an officer of the United
States should force the house, the asylum of a citizen, by
virtue of a general warrant, I would ask, are general warrants
illegal by the constitution of the United States?
Would a court, or even a jury, but juries are no longer to
exist, punish a man who acted by express authority, upon
the bare recollection of what once was law and right? I
fear not, especially in those cases which may strongly interest
the passions of government, and in such only have
general warrants been used—Suppose a case that must
and will frequently happen, for such happen almost daily
in England—That an officer of the customs should break
open the dwelling, and violate the sanctuary of a freeman,
in search for smuggled goods—impost and revenue laws
are and from necessity must be in their nature oppressive—in
their execution they may and will become intolerable
to a free people, no remedy has been yet found
equal to the task of detering and curbing the insolence of
office, but a jury—It has become an invariable maxim of
English juries, to give ruinous damages whenever an officer
has deviated from the rigid letter of the law, or been
guilty of an unnecessary act of insolence or oppression—It
is true these damages to the individual, are frequently
paid by government, upon a certificate of the judge that
there was probable cause of suspicion—But the same reasons
that would induce an English judge to give this certificate,
would probably lead an American judge, who will be
judge and jury too, to spare the public purse, if not favour
a brother officer.

I could proceed with an enumeration of familiar [similar?]
instances that must and will happen, that would be as
alarming as prolix: but it is not my intention to ring an
alarm bell—If I know myself I would rather conciliate
than divide—But says Aristides the government may establish
[ ] for such cases, though not commanded; what
they will do I will not presume to say; but I can readily
and will hereafter prove if they do, they will violate the
constitution; and even admitting their power, it would be
but a slender thread to [ ] so great a stake upon.

Here I must meet a position that has been ingeniously
advanced—That all powers and rights not expressly given,
[ ] consequently reserved—If this is not downright political
nonsense, it is at least, untrue in theory and impossible
in practice—until man is gifted with one of the most
important attributes of the Deity—that of fore knowledge
and [ ] it will be impossible to limit affirmatively legislative
[ ]. When a people part with the legislative power
to government they can no more say, you shall make such
and such [ ] than they can say, such and such events
shall happen—[ ] must be regulated by events—All the
precaution that [ ] to human wisdom, is the exertion of
a negative [ ] speaking thus in the language of a bill of
rights, no [ ] shall authorize, no plea of necessity shall
justify the legislature in making a law to abolish or infringe
the freedom of the press, or the liberty of conscience,
&c.—And even [ ] these bounds are expressly and
clearly affirmed, we [ ] lament that they do not always
prove an effectual safeguard against the power of government;
but they are [ ] guard, and why shall we leave
our citizens totally [ ]. A gentleman, in the Pennsylvania
convention, of [ ] reputation, said, that the form of
the constitution—the organization of power, is a bill of
rights—he had then a defensible, but unformed idea floating
in his imagination [ ] however, expressed it inaccurately,
and unfortunately [ ] on the wrong side of his
own question. A proper organization of power would most
probably prevent a violation [ ] bill of rights and prove
the best security of political [ ]. Such an organization is
nothing more than a good [ ] a mint or die, that will
make money in its proper form, [ ] the quantity of alloy
must be regulated by law, or the people may be
cheated by a debased currency—The truth is, that the
rights of individuals are frequently opposed to the apparent
interests of the majority—For this reason the greater
the portion of political freedom in a form of government
the greater the necessity of a bill of rights—often the natural
rights of an individual are opposed to the presumed
interests or heated passions of a large majority of [ ]
democratic government; if these rights are not clearly and
expressly ascertained, the individual must be lost; and for
the truth of this I appeal to every man who has borne a
part in the legislative councils of America. In such government
the tyranny of the legislative is most to be dreaded.—In
monarchical governments, the feelings of the majority
[ ] most frequently on the side of the individual from
the [ ] jealousy inseperably attendant on those forms
of government, where the tyranny of the executive prevails
tyranny whether exercised in the garb of a despot, or
[ ] plain coat of a quaker, is equally detestable, and
should be guarded against.

If a bill of rights was that essential requisite to a [ ]
constitution, why was it omitted by a convention of the
ablest men in America, a large majority of whom were unquestionably
well disposed? This has been a natural inequity
[inquiry?], and perhaps the true reason yet remains to
be disclosed. I have been informed that the proposed constitution
was carried through its several stages, in a very
inoffensive form to the last, and that it did not assume its
decided featues until days before the convention rose—the
changes then effected produced much difference of opinion—created
some [ ] and their patience was too much
exhausted to make the necessary correspondent alterations
and additions. These [ ] may, I believe, be depended
on, but the inference is [ ] offered as conjecture—if
true, we may attribute the omission of a bill of rights, and
many other imperfections to [ ] rather than design.